Citation NR: 9617935
Decision Date: 06/24/96 Archive Date: 07/08/96
DOCKET NO. 94-41 956 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a total evaluation based on individual
unemployability.
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Jeffers, Associate Counsel
REMAND
The veteran served on active duty in the United States Coast
Guard from January 1955 to June 1971.
The veteran is service-connected for residuals of a tendon
transfer of the left thumb, with resultant non-functional
thumb; arteriosclerotic heart disease with hypertension and a
history of angina; and residuals of status post appendectomy.
The veteran also suffers from other disabilities, to include,
but not limited to, bilateral varicose veins; exogenous
obesity; diabetes mellitus; dermatitis of the back of the
thighs; a benign prostatic hypertrophy; degenerative
arthritis of the right knee; painful motion of the left knee;
and Dupuytren’s contracture of the right fifth finger.
This appeal arose from July and September 1992 rating
decisions of the St. Petersburg, Florida, Department of
Veterans Affairs (VA), Regional Office (RO), which, in
pertinent part, denied entitlement to total evaluation based
on individual unemployability. The veteran testified at a
personal hearing in June 1993; later that month, the hearing
officer confirmed and continued the denial of a total
evaluation based on individual unemployability.
The veteran contends, in essence, that he is entitled to a
total rating for individual unemployability, as his service-
connected disabilities have precluded all forms of
substantial employment. The veteran also contends that he is
entitled to service connection, not a pension, for his
degenerative arthritis of the right knee as it had its onset
in service. He further claims that in conjunction with his
already service-connected disabilities, his degenerative
arthritis of the right knee precludes him from obtaining all
forms of substantial employment. Therefore, he believes that
he is entitled to the benefits sought.
A review of the record indicates that the veteran’s July 1981
VA Form 23-22 (“Appointment of Veterans Service Organization
as Claimant’s Representative”) lists both the Florida
Department of Veteran’s Affairs (FDVA) as his recognized
service organization. A review of the record shows that FDVA
represented the veteran during the majority of this case,
including the veteran’s June 1993 personal hearing. It is
noted, however, that the VA Form 1-646 (“Statement of
Accredited Representation in Appealed Case”) has been
completed by the American Legion. Under the applicable
regulations, a specific claim may be prosecuted at any one
time by only one recognized organization, attorney, agent or
other person properly designated to represent the appellant.
38 U.S.C.A. § 7105(b)(2) (West 1991 & Supp. 1995); 38 C.F.R.
§§ 14.631, 20.601 (1995). Accordingly, the undersigned finds
that clarification is needed as to which organization the
claimant wants as his representative in this appeal before
the Board.
In addition, the undersigned also finds that clarification is
needed as to whether the
veteran intended to raise a claim of entitlement to service
connection for degenerative arthritis of the right knee. In
the instant case, the veteran submitted private treatment
records developed between January 1986 and September 1990,
and an April 1992 statement from a Dr. Springstead. These
records showed treatment for radiculitis of the right
shoulder and arm, in addition to degenerative arthritis of
the right knee. The veteran gave a history of an old knee
injury in service. In addition, in the April 1992 statement,
Dr. Springstead maintained that he had been treating the
veteran for degenerative arthritis of the right knee and is
unable to seek gainful employment.
On VA examination in June 1992, the examiner noted, in
pertinent part, a history of severe bilateral knee pain. The
veteran averred that the pain was worse on motion and after
walking for 1 to 2 hours. The veteran also stated that his
knee swells up with severe pain, making it difficult in
walking up or down stairs; noted to be worse walking down.
Upon examination, the examiner noted that the veteran limped
to the right leg, and he used a cane with the right hand.
The diagnosis was pains and limitation of motion of both
knees.
In July 1992, the St. Petersburg VARO assigned a total and
permanent evaluation, for pension purposes, of 20 percent
disabling for degenerative arthritis of the right knee.
Consideration of individual unemployability benefits was
deferred pending receipt of VA Form 21-8940. Entitlement to
a total evaluation based on individual unemployability was
subsequently denied in a September 1992 rating decision;
later that month, the veteran filed a notice of disagreement
as to the findings of his claim.
The veteran’s accredited representative then submitted a
November 1992 statement from Dr. Springstead, which
reiterated that the veteran had degenerative arthritis of the
right knee. Dr. Springstead also opined that the veteran
probably had the onset of the degenerative arthritis while in
service. On his February 1993 VA Form 9, the veteran
indicated that he was unemployable due to his degenerative
arthritis of the right knee.
As noted above, it is the finding of the undersigned that
clarification as to whether the veteran intended to raise a
claim of entitlement to service connection for degenerative
arthritis of the right knee is required. As part of this
remand, the RO will be asked to contact the veteran and
request that he provide the specific information as to his
alleged in-service injury, to include, but not limited to the
nature of alleged injury, where it was incurred, and dates
and places of treatment, both in-service and after
separation. The undersigned reiterates to the veteran that
the United States Court of Veterans Appeals has stated that
“[t]he factual data required, i.e., names, dates and places,
are straightforward facts and do not place an impossible or
onerous task on appellant. The duty to assist is not always
a one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence.” Wood v. Derwinski, 1 Vet.App. 190, 193
(1991). In sum, if the veteran wishes to pursue a claim of
entitlement to service connection for degenerative arthritis
of the right knee, he must cooperate by providing the RO with
any information requested.
Thus, to ensure full compliance with due process
requirements, this case is REMANDED to the RO for the
following development:
1. The RO should seek clarification of
the claimant’s Appointment of Veteran’s
Service Organization, pursuant to the
July 1981 VA Form 21-22.
In sum, the claimant must be informed
that his VA Form 23-22 lists the Florida
Department of Veterans Affairs (FDVA).
Consequently, it is the only Veterans
Service Organization that may represent
him for this claim. Yet, the VA Form 1-
646, in this case, has been erroneously
completed by The American Legion. As a
result, the veteran should be instructed
that he must indicate, in writing,
whether the Florida Department of
Veterans Affairs or The American Legion
will serve as his solitary representative
in this appeal before the Board.
2. The veteran must also be asked to
indicate, in writing, whether he intends
to raise a claim of entitlement to
service connection for degenerative
arthritis of the right knee. If so, the
veteran must also be asked to indicate,
in writing, the specific details as to
his alleged in-service injury, to
include, but not limited to the nature of
alleged injury, where it was incurred,
and dates and places of treatment, both
in-service and after separation. The RO
must then follow-up on any reasonably
verifiable leads provided by the veteran
so that VA may assist him in developing
his claim.
In the event that the veteran has not appointed the American
Legion (Legion) as his representative, the Florida Department
of Veterans Affairs should be provided with an appropriate
supplemental statement of the case, and an opportunity to
respond. However, if there has been an appointment of the
Legion and the veteran is not pursuing a claim of entitlement
to service connection for degenerative arthritis of the right
knee, this case should be returned to the Board for further
appellate consideration if otherwise in order. The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran need not do anything, unless otherwise contacted.
C. P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual Member of the Board for a
determination. This proceeding has been assigned to an
individual Member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
- 2 -